Portland, Oregon Civil Litigation Defense Attorneys - Kaempf Law Firm PC

A Blog by John Kaempf

In June, The U.S. Supreme Court Held That A Large Cross Displayed On Public Land In Maryland As Part Of A Memorial To World War I Veterans Does Not Violate The Establishment Clause of the First Amendment.

This June, in a case called The American Legion v. American Humanist Association, the U.S. Supreme Court addressed a constitutional challenge to a 32-foot tall monument in Bladensburg, Maryland on public land, known locally as the “Peace Cross.” It was built in 1925 with money raised by the American Legion, a military veterans association. It was designed by mothers as a tribute to their sons, 49 area soldiers who died in World War I. The Court held that it does not violate the Establishment Clause of the First Amendment to the U.S. Constitution. It states: “Congress shall make no law respecting an establishment of religion.”

In a 7-2 decision (Justices Ginsburg and Sotomayor dissented), the Court in American Legion stated that the dispute must be viewed in its “historical context.” After World War I, rows of white crosses marking the overseas graves of soldiers who died were “emblazoned in the minds of Americans at home.” For nearly a century, the Cross “has expressed the community’s grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought.” The Cross sits on a large pedestal. The American Legion’s emblem is displayed at its center, and the words “Valor,” “Endurance,” and “Devotion” are inscribed at its base, along with the names of the soldiers who died.

The American Humanist Association “AHA,” an atheist organization, sued. It claimed it was “offended by the sight” of the 94-year-old memorial on public land, and “its presence there and the expenditure of public funds to maintain it violate the Establishment Clause of the First Amendment.” It sought an order relocating or demolishing the Cross, or at least removing its arms. A lower federal appellate court agreed with the AHA and held that the Cross was unconstitutional.

But the Supreme Court reversed, so the Cross was not torn down or moved. The Court held that the Cross “has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but the manifestation of a hostility toward religion that has no place in our Establishment Clause traditions.” Justice Alito, writing for the majority, stated that “a government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion. Militantly secular regimes have carried out such projects in the past, and for those with a knowledge of history, the image of monuments being taken down will be evocative, disturbing, and divisive.”

The Court also held that “retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality.”

The lead attorney for The American Legion stated that “this is a landmark victory for religious freedom. The days of illegitimately weaponizing the Establishment Clause and attacking religious symbols in public are over.”

This case also shows that Justice Gorsuch and Justice Kavanaugh, the Court’s newest members, support religious liberty and oppose government hostility to it.

But legal commentator Ilya Shapiro, writing for The Federalist, believes the American Legion ruling is “a mess” because it does not provide a clear test going forward for what monuments and other actions do or do not violate the Establishment Clause. He argues that, as Justices Thomas and Gorsuch explain in their concurring opinions in American Legion, “the Supreme Court in the future should return to the original public meaning of the Establishment Clause, which ensures liberty of conscience and protects people from truly ‘established’ state religions that coerce belief and support. A non-coercive, harmless monument—a cross memorial, or a Star of David, or any other religious symbol—is not an establishment of religion. Nobody in America is really trying to establish religion.” The “real dangers to the freedom of conscience now come more from government mandates and regulations that infringe on the free exercise of systems of belief.”

So, readers can expect similar legal challenges going forward.

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